Law Review: Self defence, murder by love, assisted dying.. and other matters….

There were two important criminal law cases yesterday: The so-called ‘have a go hero’ case and the case of a mother who killed her son through love.

Munir Hussain
The Independent reports:“A businessman jailed for seriously injuring an intruder after the lives of his family were threatened by knife-wielding burglars in their home was shown “mercy” and freed by senior judges today. The Lord Chief Justice, Lord Judge, sitting at the Court of Appeal in London with two other judges, replaced 53-year-old Munir Hussain’s 30-month prison term with one of two years, and ordered that it should be suspended.”

The facts of this case are well known. The case caused an outcry, prompting politicians to respond ‘robustly’. Many lawyers took the view that the self defence, reasonable and proportionate force, laws in this country are sufficient. Many, including me, felt that the trial judge was right to sentence Mr Hussain and his brother to prison. Chasing someone down the road and battering them so badly with a cricket bat that the bat broke and the victim suffered serious injury is not self defence. It may well be a completely understandable reaction, but no matter how one looks at it, it is retribution. It is vengeance. iIt is taking the law into your own hands.

Today the Court of Appeal, headed by the Lord Chief Justice, Lord judge, freed Mr Hussain – but not his brother. Mr Hussain was given a suspended sentence of one year. His brother had his sentence reduced to a very merciful one year.The brother had not been subjected to threat and violence during the burglary.

The Independent noted:“Lord Judge said: “This trial had nothing to do with the right of the householder to defend themselves or their families or their homes…… (lord judge rehearsed the violence of the tack on the burglar)…..this was “not an ordinary or normal case or one that falls within the overwhelming majority of cases, not least because of the character of the two appellants”.

I have not read the judgment, so I am reliant on the Independent report. That being said.. this appears to be the key point..“Involvement in this serious violence can only be understood as a response to the dreadful and terrifying ordeal and the emotional anguish which he had undergone.”

This is not a precedent directly in the sense of being a licence for retribution. These were exceptional circumstances. I watched a BBC report later in the day. An ex senior police officer and a probation officer were brought on. The probation officer said that experts, judges, commentators, lawyers and others can say what they like and it won’t make a blind bit of difference to public opinion. The public, the probation officer said, were alienated from the criminal justice system and we only had ourselves to blame because we are not tough enough on young career criminals. The Police officer reinforced the sense in the judgment but did say that provided reasonable force is used when an intrusion is taking place, prosecution is unlikely.

We are good at shades of grey. Our legal system is built upon flexibility. Too much definition or strict liability can lead to inflexibility and injustice. Today’s decision may well be one of those classic fudges where the rule and principle of law is upheld, the law emphasised by an experienced judge, and a degree of ‘mercy’ applied. I’m not against that type of justice. I think quite a few people would suffer from a red mist after an intrusion. The thing is, would we have beat a man so badly with a cricket bat? I’m not so sure and for that reason, I would prefer not to see the law changed and in exceptional trouble cases… there is always the objectivity of appeal.

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‘Mercy killing’ mother is jailed for life

The Independent reports: A mother who gave her brain-damaged son a lethal heroin injection to end his “living hell” was told today she must serve at least nine years in jail. Frances Inglis, 57, was given a life sentence for killing 22-year-old son Tom after he suffered severe head injuries when he fell out of a moving ambulance.

Reports reveal that Mrs Inglis made two attempts to kill her son, not believing medical advice that the son was showing signs of recovery, to put him out his misery. The judge made the very important point,while acknowledging that her motives were born of love…“What you did was to take upon yourself what you thought your son’s wishes would have been, to relieve him from what you described as a living hell…..But you cannot take the law into your own hands and you cannot take away life, however compelling you think the reason. You have to take responsibility for what you did.”

Now the Royal College of Physicians slams the DPP’s plans for euthanasia

The Telegraph reports: “Poor Keir Starmer, the luckless Director of Public Prosecutions forced by some simpering Law Lords, who fancy the idea of euthanasia, into the impossible task of “clarifying” when it’s okay to assist someone to kill themselves, keeps being slapped down by medical professionals.

The British Medical Association and the General Medical Council have already made it abundantly clear that they want no part in voluntary euthanasia becoming a clinical practice. Now the estimable Royal College of Physicians, the professional body representing over 20,000 physicians that “aims to improve the quality of patient care by continually raising medical standards”, has weighed in with a strongly worded letter to the DPP.

“We would go so far as to say”, writes the College’s Registrar, Dr Rodney Burnham, “that any clinician who has been part, in any way, of assisting a suicide death should be subject to prosecution.”

“We thought that it was time to have an update on the appointment process for the twelfth justice. As our readers will recall, some time ago applications for this post were invited – with a closing date of 26 October 2009. Since then, there have been no official announcements. There was much press speculation about the possible candidacy of Mr Jonathan Sumption QC. However, in December 2009 he announced that he was withdrawing his candidacy….

The saga goes on… but it is an important one….

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Jackson costs review divides market

I have read Jackson LJ’s report – thankfully this article from The Lawyer relieves me of the need to explore some of the more problematic issues – and it comes straight from the mouths of the people at the coal face. I enjoyed reading it. Definitely worth a read.

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And a bit of Social Media Mavenry and Gurudom for the weekend, Sir, Madam?

As regular readers know… I am not enthusiastic about mavens or gurus droning on about social media – but I do like Brian Inkster and Chris Sherliker, who are both regular twitterers… so I shall make one final exception. They usually make sense, so perhaps they will take a different view to a lot of the nonsense I have seen on the net about twitter and other social media and how lawyers can benefit. Brian wrote and asked me if I could flag this up… knowing of my views!. Of course… a pleasure….

This Friday, 22 January, at 3.30pm you can learn how UK lawyers are using social media. American Attorney and social media expert, Adrian Dayton, will be interviewing Glasgow Solicitor, Brian Inkster of Inksters Solicitors, and London Solicitor, Chris Sherliker of Silverman Sherliker, about their experiences particularly with Twitter. Adrian will be seeking to find out whether things are really that different in the UK from the US. Are lawyers in the UK and abroad using social media to make connections and bring in business? Or are UK lawyers too serious for Twitter? You can listen and join in by way of a free conference call by registering in advance at: http://adriandayton.com/2010/01/how-uk-lawyers-are-using-social-media/

I may, of course, listen in… so if they do talk nonsense, I shall run amok. They would, I am sure, expect nothing less. 🙂

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13 Responses

You say that the facts of the Hussain case are well known. I disagree. As I said in a comment to one of your previous posts on this case, the reporting of the case has been inconsistent. The case has been widely reported, but much of this reporting seems to be based on hearsay. I have read much of this reporting, but at best I can make an educated guess as to the facts.

You say: We are good at shades of grey. Our legal system is built upon flexibility. Too much definition or strict liability can lead to inflexibility and injustice. Today’s decision may well be one of those classic fudges where the rule and principle of law is upheld, the law emphasised by an experienced judge, and a degree of ‘mercy’ applied. I’m not against that type of justice.

I agree – unlike the public, the judge does have the facts of the case. As you say, it looks like both the rule and principle of law has been upheld.

In relation to self-defence, whilst a clear and unambiguous rule which the layman could quickly apply to any situation they happen to be in as the need arose would be wonderful, it is equally impossible (and not just because of the inability of this Governments draftsman to draft there way out of a paper bag).

The public should understand that, in this instant, the flexibility of the law is actually in their favour; and the fact they may need to stop and think wholly appropriate.

In the case you refer to, the brothers’ prosecution and conviction appears wholly deserved, as it appears to me was the courts mercy.

But now a true story. On the day the original sentence of the brothers was splashed across the papers, I prosecuted a man in Hull. His home and family had been under attack by local youths for some time. Property had been taken from his garden and shed, and there was clear evidence of an attempt to force open a rear window.

One night his wife heard a noise in the back garden, and he looked out to see youths in his yard. He opened the back door and saw youths jump the fence and run towards the street to the front of his house.

He ran back through his house, grabbing his dog and a pool cue as he went. Outside the front door he ran and attacked one of three who he found still in the street.

In interview, he accepted, he had attacked the wrong group.

Even with due process, miscarriages happen. Vigilantism cannot happen, because it can be disproportionate, or as in this case, simply wrong.

Had those brothers made a mistake, and beaten into brain damage an innocent bystander, what would the public think then?

I have some older friends who, until they retired, owned a diamond, gold and jewellery business in Leeds; as such, they had always been very aware of their personal safety and were regularly advised by the police. The lady of the house had been a surrogate mum to me, as my mother died when I was very young – as such, as she got older, I was quite protective of her. Three years ago, during the long hot summer of ’06, I was staying with them; we were eating dinner, all the windows and doors were open, the house is in it’s own grounds and at the end of a private road. I heard a noise outside, not an alarming noise, just something hard to place….I got up and walked out of the back door – as I did, 2 youths ran into the house. My instincts kicked in and I ran in after them, pressed the panic button by the back door, then the first thing I saw was a dining chair, I picked it up and swung it at them, if I could have killed them I openly admit I would have done. I hit one with it, then, amazingly, the house was full of police.

As events unfolded, it transpired that the boys had stolen a car, crashed it when chased by police and then run away down the private road, still chased by police, thinking it led into open land. None of us were hurt, although my lovely friend and her husband were badly shaken.

I spent some years in the police force early in my life, so was not unused to dramatic events; but the rage that consumed me was such that I was truly blinded to sensible action and if the first thing I’d seen had been a poker, I would have picked that up. I do believe, with hindsight, that if one of them had been felled by the poker and the police hadn’t been there almost immediately, logic would have been lost to me, such was my rage, and I would have hit the guy until life was gone.

Lucky? Yes I was – because what view would a court have taken? Reasonable force? There was NO reason within me, that night……………

An important issue arises out of the Hussain case and it is one which has received little attention in the media. The burglar (Salem) received a supervision order.

Salem was found to be unfit to plead. That would invoke the procedure in the Criminal Procedure (Insanity) Act 1964 as amended by the Criminal procedure (Insanity and Unfitness to Plead) Act 1991. If the outcome of that process is a supervision order then many people will consider that the law is not protecting the public sufficiently from a person who was, after all, a career criminal with numerous previous convictions. Maybe the armoury of disposals available to courts in unfitness to plead cases needs to be strengthened?

On that day, my back fence ran along that private road (The Drive in Leeds). We had a friend up from London and I had just popped out for Chinese.

When I got home police were everywhere and we had been told that men were cornered in your friends house. I saw the men being taken away by the polce.

It was a warm day and our patio doors were open. Our two sons, one weeks old, were upstairs asleep. My wife and her friend heard the car crash and went and looked over the back fence, and the men (there were more who had starburst from the car as I understand it) must have already passed and got into your friends house.

We were also very shaken and my wife commented at the time that had they run into our house and up the stairs, she would have followed them with a anything she could lay hold of to protect the boys.

The fact is that our house had a side passage which led straight to another road which was actually not possible to get to quickly other than through our passage. Had the men (and I do say men) ran that way, they would have likely got away.

The next morning we realised that side gate was open. We were left wondering whether one of the men had hidden in the shed and left overnight.

I went to see your friends a few days later to leave my number and name and assure them that if they ever felt the need, they could call me and I would come round instantly.

From your post I get the impression you now think you over-reacted, I would like to say as a criminal practitioner that those events were particularly terrifying, in fact, that event (as well as having a neighbour from hell) led us to move away all together 6 months after we bought the house.

That event was of course different to the reported case, you were acting in the heat of the moment (and extremely courageously we thought at the time). The other difference is that there was no poker, and you did not continue hitting anyone.

Extremely small world. Must admit I’m a little shocked by this. Send your friends our best regards and again, the story of your courage that day was inspiring to us.

The problem is with blind rage upon finding stranger attacking one’s home is exactly that. If someone has the audacity to break into your house then it is possible that the stranger is a perceived threat until they are unable to get back up from the floor..

One does not know whether one would seek to detain an individual or beat him until he couldn’t move. I’m sure it would depend how that person got into your home, how many people you had to back you up and the individual circumstances at the time.

As a policeman told me once (after some travellers had tried to break in to my uncle’s farm house with axes whilst we were having a BBQ round the back – fortunately the dogs and a single shot into the air with a shotgun had scared them off)

“you awake to hear a burglar coming up the stairs and your reach for your shotgun. Blast him once in the knees and send a second shot into the ceiling… when the police arrive, tell them the second shot was the warning shot”

Small world, indeed! The people who bought your house subsequently took out one of the fence panels that backed onto The Drive at right angles, and put a gate there……..

I remember you quite clearly, as do the Malones – Shirley told me that you had been round a few days later and had been very kind to them. They moved to Harrogate early last year – I see them very regularly, in fact Shirley comes over to stay with me often. I will give them your best wishes and I’m sure they will send the same to you and your family.

The neighbour from hell? Ohhh yes, her garden backed onto Shirley’s and the trouble we had with her!! 🙂

just to be boring (probably gone too far native) i agree with charon and the courts on hussein (and i take the caveats about what the facts actually are – i am relying on the media’s version of events). if some sections of the press (guess who) are branding him a ‘have-a-go hero’, it’s unhelpful. it doesn’t look life self-defence because (as people above have said) it seems disproportionate. there strikes me as being no point at all putting people like mr hussein in jail and a suspended sentence on the grounds of what looks like huge provocation seems sensible.
under unfitness to plead, a supervision order is not the only option available. shooting in the dark (now isn’t that an unfortunate phrase!?) i imagine they felt that with his brain damage, his ‘career’ was over. it would be ‘interesting’ to see the outcome of a civil action by the burglar might be. ‘interesting’ and a pain because the tabloids would have weeks of ‘loony lefty judges’ headlines ready to roll. more of a pain for the hussein brothers of course and the ‘justice’ part of me as opposed to the ‘law’ part dreams of a court giving hussein damages for his broken cricket bat. even without having been in pam’s position above you can imagine feeling very much as she did.

while the police are entitled to their views on the law, and his comments seem relatively sane, it strikes me as bad timing that paul stephenson should comment right now on the matter. not his fault that the press will seize upon his comments – unless that was his intention, of course. no no – it couldn’t be.

sadly, someone who has shown the usual grasp of the law and the salient facts for a politician is dominic grieve who commented on stephenson’s words: ‘‘If no one ever did anything because they thought they would get stabbed, then criminals would always get away with their crimes.’ i’m unsure as to how the encouragement of the police will quiet anyone’s fears that they may be stabbed for intervening – or indeed make it less likely. good job he doesn’t have a legally-connected portfolio like being shadow justice minister or anything. oops! proof that the next lot will be as useless in anything legal as this lot.

The Hussian case is just another example of the LCJ cocking it up, plain and simple.

It is a shame about Frances Inglis, I’ve had much debate with a few colleagues over her case. It is unfortunate, however ‘the law is the law’ even if the law is an ass.

If it were a doctor however trying to relieve the pain and it just happened that they killed the child they would have gotten off. The odd legal fictions that the criminal law invokes in such situations such as the doctrine of double effect, withdrawing life support as an omission, shows the great strain in which judges go through in order to not criminalise such behaviour, when in fact you are killing someone. Whatever moral blameworthiness that word brings.

She obviously thought it was the lesser of two evils and at least she had the guts to do it, rather than watch her child live a miserable life.

On your RCP story – I can’t say it surprises me. I suffer from Hashimoto’s Disease, and when first diagnosed, I was prescribed a synthetic medication to replace what my thyroid gland wasn’t producing. After many years of taking the synthetic replacement, I was suffering even more. I then discovered that my body doesn’t like synthetic thyroid hormones, and that I would cope better with natural thyroid.

Just one problem – in Feb ’09 the RCP decided that synthetic drugs were the only drug allowed to treat people with hypothyroidism. This decision has left people like me and thousands of others in an awkward situation. The (cheap) synthetic drugs are provided free by the NHS, as we need to take them for the rest of our lives, but it is the synthetic drugs that are slowly killing us. Natural thyroid is not available in this country, and we now have to buy/import it from abroad. Without a working thyroid one suffers from a multitude of ailments, eventually leading to death. Good to know that they care, eh?

[…] (including a proposal for legislative reform in Scotland), home defence criminality and more. CharonQC, with the help of roja, deals with it. The facts of this case are well known. The case caused an […]

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